CLINTON E. AVERITTE, Magistrate Judge.
Petitioner BILLY DON MENEFIELD has filed a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his state court conviction and sentence. It is the opinion of the undersigned United States Magistrate Judge that petitioner's application is time-barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d). Consequently, respondent's motion to dismiss should be GRANTED, and the habeas corpus application filed by petitioner should be DISMISSED.
On May 3, 2007, petitioner was indicted in Wheeler County, Texas for the offense of possession of a controlled substance, namely cocaine, in an amount of less than one gram. State v. Menefield, No. 4375. On February 22, 2010, a jury found petitioner guilty and, on February 23, 2010, the trial court set petitioner's punishment at twelve (12) years imprisonment and a $5,000 fine. On February 24, 2010, counsel was appointed to represent petitioner on appeal. No notice of appeal was ever filed on petitioner's behalf.
On May 12, 2010, petitioner, represented by the same attorney who had been appointed for his direct appeal, filed a state application for a writ of habeas corpus alleging ineffective assistance of appellate counsel due to her failure to file a notice of appeal. On August 25, 2010, the Texas Court of Criminal Appeals granted petitioner an out-of-time appeal. In re Menefield, App. No. WR-74, 194-01.
On September 2, 2010, the trial court appointed new appellate counsel to represent petitioner. On September 27, 2010, new counsel filed a direct appeal challenging petitioner's conviction and sentence. On June 10, 2011, the Court of Appeals for the Seventh District of Texas, addressing one of petitioner's three grounds, reversed petitioner's conviction and remanded the case for a new trial. Menefield v. State, No. 07-10-0378-CR.
The State filed a petition for discretionary review of the intermediate appellate court's ruling. On April 18, 2012, the Texas Court of Criminal Appeals reversed the judgment of the court of appeals and remanded the case to the appeals court to consider petitioner's remaining claims. Menefield v. State, PD-1161-11.
On June 20, 2012, the Seventh Court of Appeals, after considering petitioner's two remaining grounds, affirmed petitioner's conviction in an unpublished opinion. Menefield v. State, No. 07-10-0378-CR. Petitioner did not seek further direct review of his conviction and sentence by filing a petition for discretionary review.
On May 9, 2013, almost eleven (11) month later, petitioner filed a state application for a writ of habeas corpus challenging his conviction and sentence, such application being file-marked May 20, 2013.
On August 26, 2013, petitioner filed a second state habeas application challenging his conviction, such application being file-marked September 16, 2013.
On April 8, 2014, petitioner filed a federal habeas application challenging his state conviction and sentence, such application being file-marked April 15, 2014.
Section 28 U.S.C. § 2244(d)(1) establishes a one-year limitation period for filing a habeas petition in federal court. That subsection provides:
Title 28 U.S.C. § 2244(d)(2) further provides:
The record does not reflect that any unconstitutional State action impeded petitioner in his filing of the instant federal writ, 28 U.S.C. § 2244(d)(1)(B), nor do petitioner's claims involve a constitutional right recognized by the Supreme Court in the last year and made retroactive to cases on collateral review, 28 U.S.C. § 2244(d)(1)(C), nor has petitioner shown he could not have discovered the factual predicate of his claims until a date subsequent to the final conviction date. See 28 U.S.C. § 2244(d)(1)(D). Accordingly, the one-year limitation period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Petitioner's conviction was affirmed on direct appeal on June 20, 2012. Petitioner did not file a petition for discretionary review, consequently, his conviction became final on July 20, 2012, when the 30-day time period for filing a petition for discretionary review expired. See Mark v. Thaler, 646 F.3d 191 (5th Cir. 2011). Therefore, any federal habeas application challenging petitioner's conviction was due, absent any tolling, on or before July 22, 2013.
The time during which a "properly filed" application for State post-conviction is pending will statutorily toll the limitations period. 28 U.S.C. § 2244(d)(2). Petitioner's first state habeas application, filed May 9, 2013, was dismissed July 31, 2013 by the Texas Court of Criminal Appeals as non-compliant with Rule 73.1 of the Texas Rules of Appellate Procedure, meaning the Texas court dismissed petitioner's application for failing to follow the state's procedural filing requirements. A state writ application dismissed by the state courts pursuant to Rule 73.1 is not "properly filed" within the meaning of section 2244(d)(2) so as to statutorily toll the AEDPA statute of limitations. See Broussard v. Thaler, 414 Fed.Appx. 686 at *3 (5th Cir. 2011) (Texas requires compliance with Rule 73.1 as a prerequisite to consideration of the merits of an applicant's claims, federal courts must defer to state court determinations that a petitioner failed to follow filing requirements, and such applications are not "properly filed" so as to toll the AEDPA statute of limitations); Davis v. Quarterman, 342 Fed.Appx. 952 at *1 (5th Cir. Aug. 27, 2009), cert. denied sub nom Major-Davis v. Thaler, 558 U.S. 1153, 130 S.Ct. 1152, 175 L.Ed.2d 983 (2010) (state habeas application not filed in conformity with Rule 73.1 indicated the Texas Court of Criminal Appeals did not review the application and petitioner's application was not "properly filed" so as to toll the limitations period under the AEDPA). Petitioner's second application, filed August 26, 2013, was filed over a month after the expiration of the limitations period and neither of petitioner's state habeas applications operated to toll the limitations period. As the statutory tolling provisions for state habeas actions are not applicable, petitioner's federal habeas application, filed April 8, 2014, is time barred.
Even if this Court were to statutorily
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the motion to dismiss filed by respondent WILLIAM STEPHENS be GRANTED, and that the petition for a writ of habeas corpus filed by petitioner BILLY DON MENEFIELD be dismissed as time barred.
The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
